JUDGMENT :

1. The present Sales Tax Revisions/References (for short “STRs”) were admitted on following questions(s) of law:-

IN STR NOs. 182-187/2017

“Whether the LAN Connection Cable (CAT-5, CAT-6) is taxable under S. No. 3 or 24 of Part A of Entry No. 65 of Schedule-IV or at General Rate as per Schedule-V appended to the Rajasthan Value Added Tax Act, 2003 (for short “RVAT Act”)?”

In STRs 75-80/2018, STRs 4-6/2019, STRs 9-10/2019, and STR 30/2019:

“(i) Whether the ld. Tax Board was correct in law in holding that the networking products such as Routers, Switches, Hubs, LAN Cards and LAN cables etc. sold by the petitioner are not computer peripherals hence was taxable @ 12.5%/14% and not @ 4%/5%.

(ii) Whether the ld. Tax Board was correct in law while dismissing the appeal in restricting its findings/reasons only to the extent of CAT-5 and CAT-6 cables and not giving any findings/reasons whatsoever in respect of networking products such as Routers, Switches, Hubs, LAN Cards sold by the petitioner?”

2. Since the common question of classification of ‘CAT-5/CAT-6 cable’ is involved in all these STRs, with the consent of the parties, all these STRs were heard together.

3. Learned counsels for the petitioner-assessee submits that the petitioner/companies were engaged in the business of selling computer and computer related products, including the networking cables (CAT-5/CAT-6) whose primary function is data transmission. Learned counsels for the petitioner-assessee contends that the petitioner-assessee was rightly classifying the networking cables as ‘computer peripherals’ and accordingly discharging its VAT liability by treating the same as computer system and peripherals, as classifiable under Entry 3 of Part A of Schedule IV of the RVAT Act. Learned counsels further contends that all the authorities below have erred in law by classifying the networking cables under the residuary head and not the specific head and therefore erroneously imposed additional tax and interest upon the petitioner-assessee. In support of their contention that CAT-5/CAT-6 cable would form part of ‘computer peripheral’, learned counsel for the petitioner-assessee made the following submissions:

3.1) The first submission of learned counsels for the petitioner-assessee is that the revenue has not discharged its onus to prove that CAT-5/CAT-6 cables would not be included in the broad and expansive definition of ‘computer peripherals’. It is submitted that neither any expert/technical opinion was sought nor any evidence was brought on record to prove their point. It is submitted that as per settled position of law, onus or burden to show that a product falls within a particular tariff item is always on the revenue and since the revenue has failed to discharge its onus, the reference ought to be allowed in the favour of the petitioner-assessee. Reliance in this regard is placed on Apex Court judgments of Union of India vs. M/s Garware Nylons Ltd. reported in (1996) 10 SCC 413, Voltas Ltd. vs. State of Gujarat reported in [(2015) 80 VST 12 (SC)], Commissioner of Central Excise vs. Hindustan Lever Ltd. reported in (2015) 10 SCC 742, Commissioner of Central Excise, Calcutta vs. Sharma Chemical Works reported in [(2003) 132 STC 251 (SC)], M/s Hindustan Poles Corporation Limited vs. Commissioner of Central Excise reported in [(2006) 145 STC 625 (SC)] and judgment of Division Bench of this Court in the case of State of Rajasthan and Ors. vs. Deys Medical Stores Ltd. and Ors. (DBCWP No. 2139/1999 decided on 27.07.2007).

3.2) The second submission of learned counsels for the petitioner-assessee is that the Revenue as well as the lower adjudicating authorities have given an extremely restrictive meaning to the term ‘computer peripherals’ to only include input and output devices, which is contrary to the judgments of this Court in the case of M/s Kores (India) Limited & Ors